Rwanda’s Gacaca courts: a mixed legacy

The traditional community Gacaca courts –set up to prosecute the perpetrators of the 1994 Rwandan genocide– will be closing this month. But how will they be remembered by Rwandans? Jean Kayigamba reports on some mixed feelings about how effectively these courts have been able to bring about real justice.

The establishment of Gacaca courts in 2001 is one of the key landmarks of post-genocide Rwanda. The current Tutsi-led government hails these courts as a success claiming they have provided post-conflict justice like never before. But its detractors, which include major human rights organizations, believe the system has serious shortcomings.

On 18 June 2012, the Rwandan government will officially close down these courts that have tried around two million genocide suspects. But, all things considered, will their legacy be one of worthwhile success or regrettable failure?

In the wake of the 1994 Tutsi genocide, Rwanda was faced with enormous challenges, notably rebuilding its social fabric that had been torn apart by the war and the mass-killings targeting ethnic minority Tutsis and Hutu moderates. By all accounts, this was the worst genocide of the last half century.

Vast swathes of the population were involved with the killings and there was urgent need for the new Tutsi-led government to ensure that justice was done for the survivors.

One of the biggest challenges they faced was that the existing judicial system simply could not cope with the surge of arrests. At the time, Amnesty International estimated there were around 124,000 prisoners in prisons with a total capacity of less than 49,000.

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For some genocide survivors it was hard to stomach the fact such horrendous crimes committed against our kinfolk could be punished through these petty courts

But during the genocide Rwanda’s judicial system had collapsed, the infrastructures of the country’s courts had been destroyed, and many of its judges and lawyers had either been killed or fled the country. The new rulers soon realized that putting these suspects on trial through the usual channels could take up to 200 years.

Eager to deliver justice, the government established the Gacaca courts in 2001. These courts were based on the traditional system of settling disputes in which judges are inyangamugayo or people of great integrity. The word Gacaca means ‘lawn’ in Kinyarwanda. Originally, these traditional community-based courts helped to resolve disputes such land wrangles, thefts, marital issues, and vandalism.

Trivializing the crimes

But for some genocide survivors, like myself, who had lost scores of relatives it was hard to stomach the fact such horrendous crimes committed against our kinfolk could be punished through these petty courts. The move was seen as trivializing the crimes against humanity committed by the marauding Hutu militias, the government, its army and the police.

However, there was no time to waste as the new Tutsi-led rulers were keen on showing the survivors – and the international community – that justice was being done in arresting and putting on trial those who were involved.

During these trials, defendants are given shorter sentences in exchange for confessing and are encouraged to seek forgiveness from the victim’s family. The survivors are also able to finally discover how their loved ones were killed and where their remains had been disposed of.

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But these trials provoked anger among many genocide survivors who thought the Gacaca courts would let many killers off the hook by allowing them to enter plea bargains.

Social tensions created by the trials have led to verbal assaults and physical violence directed towards genocide survivors. In some cases, people have been murdered so they could not testify

‘You have all these people who are recognizing that they have killed not one person, not two, not ten but so many people,’ says Bonaventure Niyibizi, a genocide survivor and former chair of Ibuka (Remember), an association for genocide survivors.

He cited the trial of those involved in the killing of his mother at the beginning of the bloodletting in 1994.

‘All of them are free on the basis that they have confessed to the killing of my mother and what is even more disturbing is I don’t believe the confessions they made were genuine,’ he said.

Another worrying fact about these trials is the social tensions they created which have led to increasing verbal assaults and physical violence directed towards survivors. In some cases genocide survivors have been murdered so they could not testify.

An additional major criticism of the Gacaca courts is the failure to put on trial members of the Rwandan Patriotic Front (RPF) [the current ruling party led by President Paul Kagame] who committed revenge killings.

‘One of the shortcomings of Gacaca has been failure to provide justice to all victims of serious crimes committed in 1994,’ noted a report by Human Rights Watch. ‘By removing RPF crimes from their jurisdiction, the government limited the potential of the Gacaca courts to foster long-term reconciliation in Rwanda.’

Other potential flaws highlighted by human rights watchdogs include doubts concerning impartiality and objectivity while dealing with relatives who stand accused of genocide crimes, corruption and the possibility of having genocide suspects among the judges themselves.

The same bodies criticized the Gacaca courts for not adhering to a number of universal principles like the presumption of innocence, the lack of prohibition against double jeopardy, the lack of adequate resources to ensure prompt trial and the lack of the right to self-defence. There have also been reports of forced confessions.

Significant benefits

However, other researchers and international scholars have welcomed the achievements of the Gacaca courts. Phil Clark, a lecturer in comparative and international politics at the School of Oriental and African Studies, University of London argues that these hearings have delivered significant benefits that ‘will have an enduring impact on every level of Rwandan society.’

He lambasted Human Rights Watch and Amnesty International for their negative attitude to the Gacaca courts arguing that they often identify the worst cases of corrupt or traumatizing hearings and suggests that these are not representative.

‘Such selectivity may be useful from an advocacy perspective but it is analytically flawed and undermines legitimate criticism of Gacaca,’ he says. ‘While the full impact of Gacaca will not be apparent for many years, it is possible to identify three main spheres in which the process has delivered benefits to Rwandans – justice, truth and democratic participation.’

After the horrors of war and genocide that rocked Rwanda in 1994, no one can say that national reconciliation has been fully attained. But the Gacaca courts are certainly a starting point for achieving these goals

Perhaps the achievements of the Gacaca courts should be measured against those of the International Criminal Tribunal for Rwanda (ICTR) based in Arusha, Tanzania. While the Rwandan grassroots courts have tackled as many as two million cases, the ICTR has only managed to complete 69 trials. Gacaca trials have cost $40 million, whereas the ICTR trials have cost a staggering $1 billion.

Clearing the backlog of genocide cases has been beneficial for Rwanda in terms of the quick reconstruction of the shattered social fabric. This was only arrived at because of the law that was introduced in 2008 that requires suspects to ask for forgiveness as well as show remorse in exchange for lighter sentences.

After the horrors of war and genocide that rocked Rwanda in 1994, no one can say that national reconciliation has been fully attained. But the Gacaca courts are certainly a starting point for achieving these goals. Rwanda is today maybe the only country where the victims of such hideous crimes live side by side with the perpetrators. This perhaps explains why some countries, like the Ivory Coast, Somalia, and Southern Sudan, in trying to confront the aftermath of the violent conflicts in their respective countries, have sent delegates to Rwanda to learn about the workings of its local justice system.